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Juvenile Court Evidentiary and Procedural Potential Pitfalls

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By Gary L. Blume and Ronald W. Smith

“I’m not strange, weird, off, nor crazy. My reality is just different than yours.”–The Cheshire Cat[1]

Many lawyers who rarely find themselves representing accused, abused, or neglected children or their family members in juvenile court often feel as if they’ve “gone down the rabbit hole.” Terms and concepts are different. Evidentiary standards vary depending upon the stage of the proceeding. In this article, we’ll examine the highlights of both dependency and delinquency cases.[2]

Dependency Practice

Prior to Filing of a Dependency Petition

Child abuse or neglect cases typically arise as a result of an investigation by a social worker from the Department of Human Resources (DHR) in response to a complaint that may have come from a concerned relative, teacher, neighbor, estranged former partner, or busy-body. The social worker will often represent that she/he has broad powers to remove children and place them with another relative or close friend under what is referred to as a safety plan.[3] Parents and others involved often think that they’ve been provided with an enforceable court order. Rather, they’ve signed a hand-written, fill-in-the-blank agreement that is effective only for 90 days.[4] If you’re called by a parent in the midst of a DHR inquiry, it is critical to remember that DHR does not have the authority to require a parent to do anything without a court order.[5] Make them go to court and prove their case.

Emergency Removal from the Custody of a Parent

A child may be summarily removed in an extreme situation, if a law enforcement officer has “reasonable grounds” to believe that a child is in imminent danger and the removal of the child is necessary for the protection of the child’s health and safety; or if there’s no parent or other suitable person able to provide for the child.[6] The child is then placed temporarily in DHR foster care and DHR must file a dependency petition.

After the Filing of a Dependency Petition–The Shelter Care Hearing

There must be a hearing within 72 hours when a child has been summarily removed from a parent’s custody.[7] This is referred to as a shelter care hearing. If a parent can be found, he/she must be provided with written or verbal notice of the date, time, place, and purpose of the shelter care hearing.[8] During the shelter care hearing, “[a]ll relevant and material evidence helpful in determining the need for shelter may be admitted by the juvenile court, even though not admissible in subsequent hearings.”[9] In other words, hearsay and other generally inadmissible evidence will be considered during the shelter care hearing. Don’t be surprised if even unqualified speculation regarding what an expert may later conclude about a child’s situation comes to light during the shelter care hearing. That is a bell that is extremely difficult to un-ring.

All dependency hearings are conducted without a jury and separate from other proceedings. The general public is excluded. Usually, only the parties, their counsel, witnesses, and the DHR social worker are present. Other persons the court finds to have a proper interest in the case or in the work of the court may be present. If the juvenile court finds that it is in the best interests of the child, the child may be excluded from the hearing.[10]

A parent’s attorney should become as thoroughly acquainted with the facts and circumstances of the case as possible before a shelter care hearing. The parent’s attorney needs to know about the parent–warts and all. Remember, from an evidentiary point of view just about everything negative about your client can and will come in during the shelter care hearing. Since the same judge will normally preside over the later adjudicatory trial, a parent’s attorney may consider it worthwhile to avoid the judge hearing the worst about the parent at this stage. A stipulation at the shelter care hearing is not binding upon the parent at subsequent proceedings.[11]

At the conclusion of the shelter care hearing, the juvenile court shall immediately release the child to the care, custody, and control of the parent/legal guardian/legal custodian or another suitable person, unless the court finds that the child has no parent/legal guardian/legal custodian or other suitable person able to provide supervision and care for the child, or that the release of the child would present a serious threat of substantial harm to the child.[12] The juvenile court’s decision must be supported by clear and convincing evidence if it determines not to release the child.[13]

If the juvenile court returns the child to the parent at the conclusion of the shelter care hearing, the court may impose a variety of conditions, including, but not limited to: restrictions on travel, associations, or living conditions of the child, pending the adjudicatory trial.[14]

Finally, a shelter-care order in which the juvenile court finds dependency, is an order that “addresses crucial issues that could result in depriving a parent of the fundamental right to the care and custody of his or her child” and is an appealable order.[15]

Pre-Adjudicatory Orders, etc.

The juvenile court may direct DHR to prepare a report with recommendations concerning the child, the family, the home environment, and other matters relevant to the need for treatment or disposition of the case.[16] If there are indications that the child may be physically ill, mentally ill, intellectually disabled, developmentally delayed, or has other special needs, the juvenile court, on its own motion or motion of a party, may order the child to be examined by a physician, psychiatrist, psychologist, etc. and require a written report prior to the adjudicatory trial.[17]

Counsel should be aware that if there are allegations of abuse or neglect, DHR may investigate the accusations independently from the juvenile court proceedings in order to enter its findings in the Central Registry for Child Abuse and Neglect (CA/N Registry).[18] The scope of DHR’s investigation by its social worker can be extremely broad and is left up to DHR’s discretion.[19] DHR will either enter a finding of “indicated” or “not indicated.” An indicated finding means that the DHR social worker found that credible evidence and professional judgment substantiates that the alleged perpetrator was responsible for child abuse or neglect.[20] A not indicated finding means that the DHR social worker did not find sufficient credible evidence to support the worker concluding that the parent was responsible for child abuse or neglect.[21] The parent has the limited due process rights typical of administrative reviews.[22]

In the event of such reports, counsel should be prepared for DHR to seek to introduce their reports and findings at the adjudicatory trial, either directly or indirectly.

Adjudicatory Trial

Although § 12-15-310 refers to this stage of a dependency case as an adjudicatory hearing, make no mistake, this is a trial. For a parent facing loss of custody of her child, the importance of the proceeding should not be vitiated by any lesser verbiage. Nevertheless, in many jurisdictions, often the court, DHR, and sometimes the child’s guardian ad litem (GAL) work to expedite the process. Sometimes, there’s an attempt to proceed to entry of an adjudication of dependency without testimony or other evidence of record. Alabama appellate courts will reverse such cases.[23]

  • 12-15-310 prescribes the manner in which a dependency adjudicatory trial is conducted, explicitly requiring proof by clear and convincing evidence.[24] Rule 1(A) of the Alabama Rules of Juvenile Procedure provides that “the Alabama Rules of Evidence shall apply in all proceedings in the juvenile courts.”[25]

Counsel should be mindful of the express language in § 12-15-310(c) allowing a third party to testify about a written or verbal statement made by a child under the age of 12 describing any act of child abuse committed against the child in DHR dependency cases if:

  • The statement was made to a social worker, therapist, counselor, licensed psychologist, physician, or school or kindergarten teacher or instructor, or during a forensic interview; and
  • The juvenile court finds that the time, content, and circumstances of the statement provide sufficient indicia of reliability. In making its determination, the juvenile court may consider the physical and mental age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, and any other factor deemed appropriate.

Obviously, the juvenile court judge is afforded broad discretion in allowing hearsay statements of children under the age of 12 years. Otherwise, hearsay testimony is subject to the Alabama Rules of Evidence.

Parent’s counsel and others opposing the party offering the documents in evidence should be vigilant regarding the contents of DHR pre-adjudicatory reports and “indicated child abuse and neglect findings. Expect those documents to be replete with double hearsay references from a variety of sources. The initial objection should be hearsay. DHR or another proponent of the records may argue that these records are an exception under A.R.E. Rule 803(6) [Business Records]. This rule has specific predicate requirements that may be difficult to establish through a DHR social worker. Don’t be reticent about taking the social worker witness on voir dire. They are typically not prepared for questions from an opponent at that point.[26]

DHR reports typically contain very little first-hand knowledge. The reports contain the social worker’s recollection of what someone else told them. Most of that information comes from someone outside of DHR. In that event, the information constitutes double hearsay and may be inadmissible.[27] The same is true for reports prepared by the child’s guardian ad litem.[28]

Also, be wary of attempts by DHR to interject the social worker’s opinion. In the opinion of the authors, it is doubtful that a social worker who holds a bachelor’s degree in social work can be qualified as an expert under Ala. R. Evid Rule 702, as it applies in juvenile court proceedings. The Daubert[29] expert standards as set out in Rule 702(b), specifically exempt juvenile cases. As such, a DHR social worker seeking to give an expert opinion must be qualified by knowledge, skill, experience, training, and education.[30] This same standard applies to true expert witnesses commonly involved in dependency cases, such as physicians, psychologists, etc.

Social workers are typically qualified as lay witnesses. Counsel should seek to limit their testimony to facts of which the social worker has first-hand knowledge. In order to qualify a social worker to provide a lay opinion, a foundation must be established to show that: (1) the witness possesses a personal knowledge of the facts and the offered opinion is rationally based upon the witnesses’ perception of those facts;[31] and (2) that the offered opinion will be helpful to the trier of fact’s determination of a fact in issue.[32]

Dispositional Hearing

If the juvenile court finds the child dependent, the court may proceed immediately or at a later date to conduct a dispositional hearing.[33] If the court decides to afford the parents an opportunity to “clean up their act,” the court shall enter an appropriate order for the temporary care of the child. That temporary arrangement may include placement with the parents, subject to terms and conditions as the court may impose.[34]

In a dispositional hearing, all relevant and material evidence helpful in determining the best interests of the child, including verbal and written reports, may be received by the juvenile court even though not admissible in the adjudicatory hearing. The parties are afforded an opportunity to examine and controvert written reports and to cross-examine individuals making reports.[35] In the event of a delayed hearing, there must also be a finding by clear and convincing evidence that the child remained dependent at the time of the dispositional hearing and order.[36]

Delinquency Practice

Generally, these cases involve a child under the age of 18 years who is charged with having committed an act that, if committed by an adult, would constitute a criminal offense.[37] Caselaw of this century has made clear that children under the age of 18 years are not just short adults. A lawyer seeking to defend a child under 18, must become conversant with the underpinnings of this line of United States Supreme Court opinions.[38]

Child Miranda[39] Rights

When placed in a custodial situation, a child has more extensive Miranda rights than an adult, as she has the right to have a parent present during questioning and to be advised of the reason that the child is being taken into custody.[40] These rights apply even when a juvenile is charged as an adult under Alabama’s automatic-transfer statute.[41]

Parents will often angrily protest that they were not told that their child was being questioned. There is no requirement that the parents of the child be informed when the child has been taken into custody (“detained”).[42] The child’s right to presence of a parent applies even if the parent declines to speak with the child. And law enforcement may not interrogate a child who has requested the parent’s presence, any more than law enforcement can interrogate a suspect who has requested the presence of his counsel who then declines to be present.[43]

In some situations, the presence of a parent may pressure or induce a child to waive his or her Miranda rights. Such inducement, even though offered by a third party, may render a subsequent confession inadmissible.[44]

Rights of a Child Taken into Custody–72-Hour Hearing

If a child is detained in a delinquency proceeding, he must be immediately released to a parent, unless:

  • The child has no parent, guardian, custodian, or other suitable person able and willing to provide supervision and care for such child;
  • The release of the child would present a clear and substantial threat of a serious nature to the person or property of others where the child is alleged to be delinquent;
  • The release of such child would present a serious threat of substantial harm to such child; or
  • The child has a history of failing to appear for hearings before the court.
  • The charge involves a firearm. [45]

If the child is not immediately released, a petition must be filed and a hearing held within 72 hours of the initial detention.[46] All relevant and material evidence helpful in determining the need for continued detention may be admitted by the juvenile court, even though not admissible in subsequent hearings.[47]

Delinquency Trial

If the matter is not resolved by some preliminary means,[48] the case will proceed to trial. The prosecution’s burden is proof beyond a reasonable doubt, with full applicability of the Alabama Rules of Evidence. Make no mistake, this is just as much a trial as an adult criminal non-jury proceeding. Don’t be misled into thinking that “it’s just juvenile court–nothing can happen that will impact the child’s adult life.” Juvenile delinquency court is no longer like Las Vegas–what happens there does not necessarily stay there.[49]

Prior to trial, the juvenile probation officer (JPO) may question the child and the parents extensively in order to determine the appropriateness of diversion. Statements made to the JPO are not admissible at trial.[50]

Dispositional Hearing–A Child Can’t Be Adjudicated Delinquent Solely for Having Committed a Delinquent Act!

If the juvenile court finds that the state has met its burden of proof, all is not necessarily lost–there still must be a dispositional hearing. In dispositional hearings, “all relevant and material evidence helpful in determining the questions presented” is admissible. That includes written and verbal reports, even though those would not have been competent evidence in the delinquency trial. All written reports must be provided to defense counsel, with the opportunity to cross-examine the author.[51] Clear and convincing evidence is required that the child is in need of care or rehabilitation.[52]

It is at this point that a zealous juvenile defense lawyer must be mindful of the following statutory language regarding the dispositional delinquency hearing: “If the juvenile court finds that the child is not in need of care or rehabilitation, it shall dismiss the proceedings and discharge the child from any detention or other temporary care.”[53] In other words, just because it has been proven beyond a reasonable doubt that your client did it, you can still win the day and have the entire case dismissed![54] How is this done? Make sure that the child completes counseling, performs community service, and makes restitution prior to the dispositional hearing.

“She who saves a single soul, saves the universe.”–The Cheshire Cat.[55]

[1] Alice’s Adventures in Wonderland, Lewis Carroll (1865).
[2] Termination of parental rights, discretionary transfer, and other proceedings are outside the scope of this article.
[3] See, e.g., Ala. Admin. Code r. 66-5-34-.06.
[4] Ala. Admin. Code r. 66-5-34-.06-(3)-(a)-3.
[5] T.J. v. Calhoun County Department of Human Resources, 116 So. 3d 1168 (Ala. Civ. App. 2013).
[6] Ala. Code § 12-15-306 (1975).
[7] Id. at 12-15-308 (1975).
[8] Id. at § 12-15-308(b) (1975).
[9] Id. at § 12-15-308(d) (1975).
[10] Id. at § 12-15-129 (1975).
[11] M.G. v Madison County Department of Human Resources, 248 So. 3d 13 (Ala. Civ. App. 2017).
[12] Ala. Code §§ 12-15-128(a), 12-15-309(a) (1975).
[13] Id. at § 12-15-128(b) (1975).
[14] Id. at § 12-15-309(a)(2) (1975).
[15] D.P. v. Limestone County Department of Human Resources, 28 So. 3d 759, 764 (Ala.Civ.App.2009).
[16] Ala. Code § 12-15-313(a) (1975).
[17] Id. at § 12-15-313(b) (1975).
[18] Id. at § 26-14-1, et seq. (1975).
[19] See, Ala. Code § 26-14-7 (1975).
[20] Id. at § 26-14-8(a)(1) (1975).
[21] Id. at § 26-14-8(a)(2) (1975).
[22] Id. at § 26-14-7.1 (1975).
[23] See, e.g., Ex parte Marshall Co. Department of Human Resources, 233 So. 3d 345 (Ala. 2017); R.R. v P.W.R., 272 So.3d 1114 (Ala. Civ. App. 2018); M.F. v W.W., 144 So. 3d 366 (Ala. Civ. App. 2013).
[24] Ala. Code § 12-15-310(b) (1975). See also, J.P. v. D.P., 260 So. 3d 862 (Ala. Civ. App. 2018).
[25] See, A.R.Juv.P. 1(A). See also, S.A.M. v. M.H.W., 261 So. 3d 356 (Ala. Civ. App. 2017) (The court of civil appeals specifically applied A.R.E. Rules 201 and 605 to a non-DHR “private” dependency case, holding that the mother was entitled to an “impartial fact finder” under Rules 201 and 605. During the adjudicatory trial the juvenile court judge repeatedly interjected his extra-judicial knowledge of the type of lifestyle engaged in by people like the mother. “All they do is smoke marijuana and hug trees.” The court of civil appeals noted that the mother was unable to cross-examine the judge about his extra-judicial knowledge.).
[26] See Ala. R. Evid. 803(6).
[27] T.C. v. Cullman County Department of Human Resources, 899 So. 2d 281 (Ala. Civ. App. 2004) (Note: J. Murdock’s special concurrence recognizing the double hearsay issue and points out that under the Rules of Evidence, the person furnishing the information to be recorded must be acting in the regular course of the business.)
[28] The Rules of Professional Responsibility apply to all attorneys, including guardians ad litem. Formal Opinion Number: 2000‑02, quoting Podell, The Role of the Guardian Ad Litem, 25 Trial 31, 34 (April 1989) ("The guardians are usually afforded the same rights as the parties’ attorneys (e.g., of making opening statements and closing arguments). Guardians cannot be called as witnesses. Guardians ad litem may not have ex parte communications with the judge.").
[29] Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
[30] Ala. R. Evid. 702(a).
[31] See, e.g., McGough v. G & A, Inc., 999 So.2d 898 (Ala. Civ. App 2007) (holding court will not consider portions of affidavit filed in motion for summary judgment proceeding that contain opinions not based upon personal knowledge); Musgrove Construction v. Malley, 912 So.2d 227 (Ala. Civ. App. 2003) (trial court correctly excluded witness supervisor’s opinion as to how worker’s compensation claimant was injured when his testimony , in violation of the firsthand knowledge rule, was based upon viewing the scene after the accident.).
[32] Lingefelt v. International Paper Co., 57 So.3d 118 (Ala. Civ. App. 2010) (Accident report containing conclusion of company’s safety manager amounted to little more than “choosing up sides” and, therefore, would not be helpful.)
[33] Ala. Code § 12-15-311 (1975).
[34] Id. at § 12-15-311(c) (1975).
[35] Id. at § 12-15-311(b) (1975).
[36] See, e.g., D.D.P. v. D.M.B., 173 So.3d 1 (Ala. Civ. App. 2015).
[37] But see the “automatic transfer statute” that makes a 16- or 17-year-old automatically subject to adult criminal jurisdiction, when accused of certain offenses, some of which are at the discretion of the arresting officer. Ala. Code § 12-15-204 (1975).
[38] See Roper v. Simmons, 543 U.S. 551 (2005); Graham v. Florida, 560 U.S. 48 (2010); J.D.B. v. North Carolina, 564 U.S. 261 (2011); Miller v. Alabama, 567 U.S. 460 (2012); Montgomery v. Louisiana, 577 U.S. ____, 136 S.Ct. 718 (2016).
[39] Miranda v. Arizona, 384 U.S. 436 (1966).
[40] Ala. Code § 12-15-202(a) (1975).
[41] Id. at § 12-15-204 (1975); Young v. State, 730 So. 2d 1251 (Ala.Crim.App. 1998).
[42] Traylor v. State, 565 So. 2d 1224 (Ala. Crim. App. 1990); Carr v. State, 545 So. 2d 820 (Ala. Crim. App. 1989) (the intake officer or detention facility officer is required to inform the child’s parents of his/her detention–not the arresting/interrogating officer).
[43] See Smith v. State, 484 So. 2d 560 (Ala. Crim. App. 1986).
[44] Johnson v. State, 378 So. 2d 1164 (1979)( “A person inducing an accused to make a confession need not always be a law enforcement officer in order to render the confession inadmissible.”)
[45] Ala. Code §§ 12-15-127, 128, and 207 (1975).
[46] Saturdays, Sundays, and holidays are included. Ala. Code § 12-15-207 (1975).
[47] Ala. Code § 12-15-207(d) (1975).
[48] Many juvenile courts have diversion programs similar to adult criminal courts. Counsel should be aware that a consent decree is an available resolution in all juvenile courts. It involves a six-month probationary-like procedure with conditions. Once completed, the charges are dismissed. A consent decree may be granted in the juvenile court’s discretion. Ala. Code § 12-15-211 (1975).
[49] See Adult Sentencing Guidelines, Sex Offender Registration and Notification requirements, etc.
[50] A.R.Juv.P. Rule 24 (D).
[51] Ala. Code § 12-15-2212(d) (1975).
[52] Id. at § 12-15-212(c) (1975).
[53] Id. at § 12-15-212(c) (1975).
[54] See T.P.B. v. State, 245 So. 3d 633 (Ala. Crim. App. 2017); In the Interest of M.H.P., 830 N.W. 2d 216 (N.D. 2013).
[55] Alice’s Adventures in Wonderland, Lewis Carroll (1865).